This is Bloomberg Law with June Brusso from Bloomberg Radio.
We've had a lot of stuff going on lately. But obviously I signed the fifteen week I believe it. I believe it's constitutional, both under the federal and under the state constitution.
Florida Governor Ron DeSantis may not have listened to the oral arguments at the Florida Supreme Court over the state's fifteen week abortion ban, but after reshaping the court into what many consider to be one of the most conservative courts in the country, he probably can predict the outcome. The case brought by Planned Parenthood, centers on a provision in the Florida Constitution that protects the right to privacy, a provision that has long been interpreted by the state's
courts as a safeguard against restrictions on abortion. But the seven justices, which included five conservatives appointed by DeSantis and a few other Republican appointees, appeared open to the idea of upholding the abortion ban despite precedent. In fact, the chief Justice, Carlos Munez, seemed to suggest several times that he considers fetuses to be human beings.
You're asking us to essentially take a whole class of human beings and put them outside of the protection of the law, essentially in the sense that if the legislature wants to protect those human beings, they are precluded by the Constitution of Florida from doing that. And at the end of the day, the argument as to why that would be right would be based on a sort of legal meaning, kind of understanding of right of privacy.
My guest is Elizabeth Zepper, a professor at the University of Texas at Austin School of Law. Since Roe v. Wade was overturned, Florida has allowed abortion up to fifteen weeks. Governor DeSantis signed a new law that would ban abortion after six weeks. So do these Florida Supreme Court arguments affect the fifteen week ban or the six week ban or both.
The argument affects the six week law because the sixth week law is a trigger ban. It will go into effect thirty days after the fifteen week ban is upheld if it is upheld, so they're closely related. The Florida Supreme Court knows that whatever it decides with regards the fifteen week ban will affect whether the six week ban exists.
So explain the issue how it centers on a provision in the Florida Constitution that protects the right to privacy.
So, the Florida Constitution has an explicit protection for a right of privacy, and in nineteen eighty nine, the Florida Supreme Court interpreted that text in the state Constitution to include a right to abortion and to protect, in that specific case, a minor's right to abortion. The question that the State of Florida has put before this Florida Supreme Court is whether they should overrule their previous precedents protecting a right to privacy under the explicit text of the
state Constitution. So, unlike the Federal Constitution, we actually have a textual protection for the right to privacy.
What's at stake here as precedent, then if they're going to reverse precedent or not.
This case squarely presents the question presented in Dobbs. At the end of the day, whether to overrule existing precedent that is many decades old in the state of Florida under a state constitutional provision that expressly protects the rights privacy. As in Dabbs, what's at stake is whether Floridians can access abortion really at all.
Several of the justices were drilling the lawyers on both sides about how they could know what was in the minds of Florida voters when they passed the privacy amend them. Do you see that as a problem for the plaintiff planned parenthood here.
So a lot of the argument focused on what's called original public meaning what would a Florida voter have understood when they cast their vote in favor of a right of privacy in the constitution they amended the constitution to create a right of privacy. Some of this is a
little bit baffling. Right Roe v. Wade was decided in nineteen seventy three, it's pretty common sensical to think the right of privacy as a constitutional matter for voters would have brought to mind abortion as well as contraception during the relevant time period, and the Florida Supreme Court in nineteen eighty nine concluded just that right. We just voted on this, it's quite clear that the voters meant to
protect abortion through a right of privacy. Apparently, the historical record isn't super robust in terms of legislative debate, but what courts are supposed to do here is engage in textual interpretation. Look at the t of the Florida Constitution. They can do things like look at the ballot summary,
what did people think they were voting on? But all of those factors seem to lead, given our common sense understanding of what the right to privacy means, toward a conclusion in favor of the plaintifs that is planned parenthood here.
But it seemed like the justices here were leaning in the opposite direction. We should mention that there are seven justices hearing this case, with five conservatives appointed by DeSantis and two other Republican appointees, including one who refused to recuse himself despite the fact that he's married to a Republican state representative who co sponsored the sixth week ban. So did it seem like the composition of this panel did not augur well for planned parenthood?
Absolutely, we didn't need to listen to the argument to conclude what was going to happen here. We're going to have seven votes, seven justices who are a Republican, five of are put there for this very specific task. We will see them over rule a number of state court decisions in favor of abortion rights, and that's state court. The question is what do they say, how do they go about overturning their own precedent.
So what would be the broadest thing they could say, and what would be the narrowest thing they could say.
I suspect they will say the broadest thing they can say, which is that there is no right to abortion protected under the right of privacy in the Florida Constitution. To get there, I think they have to follow the past that the state lays down for them, which is to argue that the Florida Constitution protects only informational privacy. That is that the state can't get information you hold private,
but may not protect decisional privacy at all. That is what you do in your private life, whether that's how you parent your children, whether that's how you make medical decisions, or whether you decide to carry a pregnancy to term. Some of the justices seem worried about this because decisional privacy applies beyond abortion to a number of other rights that we exercise, and that it seems any viable right of privacy should include.
The Chief Justice, Carlos Munez said, you're asking us to essentially take a whole class of human beings and put them outside the protection of the law. So appeared to be suggesting that he considers fetuses to be human beings.
Yes, I suppose the broadest reading and the broadest decision would go and say that fetuses have constitutional rights under the state constitution. Now, Chief Justice Munias didn't seem to have any other buyers to this theory. The state is not asking the court to do that, and it would in fact throw lord of law into chaos. Things like inheritance and taxation, property, the status of frozen embryos would all be thrown into question if the court determined that
fetuses have constitutional right. But Mounia's suggested a number of times that the fetus was a person with constitutional rights.
If, as you suspect, the court rules against planned parenthood here, what will that do to abortion access in Florida and in the South over ruling.
The right to abortion in Florida will be devastating to abortion access. Florida is a very populous state. It is a very long state geographically, which means those who live in the south of Florida have very long distances to travel to access abortion. So it will be quite devastating and of course, at the moment abortion is banned post fifteen weeks, this presents lots of difficulties, in particular for
those facing pregnancy complications or fetal anomalies. But the vast majority, around the ninetieth percent style of abortions are taking place in the first trimester, and so those abortions have not been impacted by the fifteen week ban. A six week ban basically does away with abortion, and we saw that in Texas when FB eight went into effect before Dobbs was overruled and banned abortion at six weeks.
An abortion rights group, Floridians Protecting Freedom, is working to get an abortion rights referendum on the state's twenty twenty four ballot, and apparently they hit the threshold of signatures needed to trigger state Supreme Court review of the ballot questions language. According to a recent study by the Public Religion Research Institute, sixty four percent of Floridians believe abortion
should be legal in all or most cases. I mean, is this ballot referendum the only sort of hope that Floridians have for keeping abortion legal in their state?
Yeah, So, if the Supreme Court were to determine that the right of privacy does an encompass abortion, then enacting a constitutional amendment to protect abortion explicitly becomes necessary. But what we have seen, of course is ron DeSantis engaging in counter majoritarian tactics, stacking the Florida Supreme Court with arch conservatives, and so I think we have cause to be worried about what they might do with the ballot initiative language.
Are there any parameters for what the Supreme Court can do with the ballot language?
We saw some of this in Ohio, where the anti choice groups kept going to the Court in an effort to change the language, in an effort to challenge the language, an effort to make the language misleading to voters in hopes that that would lead them to vote in the wrong direction on the REFERENDU. So, I think there are a number of strategies and court can be allies of the anti abortion movement.
Turning to another issue about the abortion pill. The Biden administration and the abortion pill manufacturer are asking the Supreme Court to get back into the abortion issues after that Fifth Circuit decision. So tell us about that Fifth Circuit decision, how restricting it was.
The Fifth Circuit essentially takes us back to pre twenty sixteen, which means that medication abortion is only available up to seven weeks rather than ten weeks where it is currently approved. That it would require multiple in person visits to a provider in place of the telehealth that we now have, So medication abortion we'd revert to a different regulatory regime.
We'd have to revert to new labels, which would mean the pharmaceutical company would have to pull all of medication abortion from the market and go through a process of redoing the labeling and the packaging of the medication, and
it would really restrict access. The Supreme Court knows this is coming, because the Supreme Court, of course already saw this case at the beginning of the summer and anticipated that the Fifth Circuit might in fact do what it did, and thus issued a stay until it determines whether to grant a petition for CIRT or decides on the petition
for cert from the government. So currently, medication abortion it's still available as it was before, and I think it's likely that the Supreme Court will have to take up this issue and issue a decision on the merits.
What sort of astonishing is the way the Fifth Circuit is putting itself in the place of experts at the FDA.
What's the most astonishing to your neighborhood law professors and lawyers is that the Fifth Circuit found standing here. I mean, these are doctors who cannot show that the change in labeling affected them at all. There's no injury to them from the move from the pre existing regulation to what is existent today. They don't have standing here. This is just the basic federal courts one oh one. You have
to be injured or not. And we see really expansive notions of standing that would really allow anti abortion and other sort of anti HIV AIDS treatment groups to come into the courts and challenge regulatory approval of drugs changes in their labeling second guessing the agency.
I want to also ask you about new anti abortion ordinances that have been adopted in several Texas counties where they're dubbed abortion trafficking and it could make driving someone to get an abortion punishable by law.
So I believe there's only one municipality that has passed the law. Lanto, Texas, made headlines for proposing it, but has cabled the ordinance. So these new ordinances I think present real challenges to the constitutional right to travel, which does protect people's movements within the states they live in. So I think we could expect that if it were to be enforced, sort of hard to know what that would look like, that we could see claims based around
the right to travel. But mostly I think it's meant to make people afraid. Even the news about it makes people afraid, makes them think simply traveling in a car with a person of reproductive age could be enough to subject you to suspicion or surveillance from police.
It seems like abortion rights are a constant fight on so many levels.
So I mean, I actually find great hope in the fact that there are people fighting. Looking at Ohio, for instance, and folks coming out in August to vote on a referendum that wasn't entirely clearly related to abortion until the abortion rights movement made it really clear. Right. They put in a lot of hours, a lot of shoe leather making sure that enough voters got out in a very off time for an important vote.
There's a lot going on in this area. Thanks so much, Liz for helping us keep up to date. That's Elizabeth Zepper, a professor at the University of Texas at Austin Law School. The government is offering settlements of up to four hundred and fifty thousand dollars to compensate Camp Lejeune veterans and others who say they were sickened by the toxic water
on the North Carolina Marine base. The plan comes as more than ninety three thousand claims have been filed and as some sick veterans have complained about the slow pace of resolving those claims. Government and plaintiffs' attorneys are fighting over how to move forward with civil trials. In the Eastern District of North Carolina. About eleven hundred lawsuits have already been filed by those whose claims were rejected or weren't resolved quickly enough by the Navy and the court system.
There is bracing for thousands more in what could become one of the largest mass tourts in history. Joining me is the lead council for the plaintiffs, ed Bell and tell us a little about the history of the Camp Lejeune litigation.
Well, we started our Camp Reviunion claims back in two thousand and seven and immediately learned that the government was going to request dismissal of the claims due to an odd law in North Carolina which indicated that if you didn't file your claims within ten years of the exposure to the water, and your claims were lost. And we thought that was kind of a crazy law, and we didn't think it'd be a problem, but apparently it turned
out to be. And so over the last over that maybe five or six years, through a lot of appellate worked in courts, including the US Supreme Court, we were eventually kicked out of court. But the instructions we got from the courts were they can't really change the law in North Carolina. The legislature of North carolinas to change it.
So we went back to North Carolina. At that time now Senator Tom Tillis was Speaker of the House, Tom Tillis, and he helped us and got a bill passed and the Senate and the legislature to the House and they fixed the problem. And then we went back to the appellate courts and said they've fixed the problem. You told us to go get it fixed, and they said, well, that's good prospectively in the future, but you can't make
it retroactive. So eventually we realized that we're going to need some help from Congress in Washington, and in fact, that's what we did. So we started drafting a statute and started working it through Congress, and eventually it got passed in August of last year, twenty twenty two.
So the Navy still hasn't paid out a claim, but the government is offering now settlements of up to four hundred and fifty thousand dollars to compensate some veterans ends and others. What's your take on.
This offer, Well, my first comment is it's a start, but they put the wrong foot forward. If you really understand what happens with this offer, then you realize it's really not It is awful. Give you an example. The highest payout is if you live there more than five years. This is a training base, so very few people live to work there over five years. We have two sisters who lived there fifteen years whose father was a principal at one of the schools, so they of course would
be in that top tier. But those two sisters both have got have had two separate cancers each and have four other currently they're currently being die diagnosed with four additional diagnoses each. So each one of those sisters who lived on the base fifteen years has had already six six diagnosable diseases. They came from the water each, and it's fairly understandable because this is a dose related reaction.
The more water you drink, the worse your result. So under their circumstances, the best they could get would be either the four hundred or the four fifty because they lived there fifteen years. But they've got six diseases each, and so in anybody's fairness doctrine, that just didn't work. The second thing is a lot of these folks who've had cancer are in the later stages in life. Their circumstances as such that they may feel like they have
to take it. And the overwhelming response I'm getting from our clients is that they feel like the government's trying to buy them off. And it's it's a very negative response from the from the clients. So think about it
this way. If missus Jones decides that she has multi my loma, and she's been and she has lived on the base a year, and she takes one hundred thousand dollars, but a year a year and a half from now, the multiple my loma ends up paying out, you know, ten times that amount, then how does that fare to her? And it's not the government is taking advantage of people's circumstances. They're taking advantage of the idea that these people maybe later on in their years and and the and the
individuals did not they didn't do that to themselves. The government is the one who made them wait this long. And so the government made them wait this long, and now trying to take advantage of that situation. The thing is totally unffair. We appreciate, we appreciate the government getting started, but this is this is a they didn't put the best football.
But do you think still they'll get a lot of takers on this?
You know, I think they'll get some. We had a webinar, we put out notice to our clients. I think we had eighteen hundred and some people on the webinar, which I thought was a lot for that short notice. Not a single person either, that entire eighteen hundred, although this was very good to offer, not one. So they're going to get some people. Again, you may have somebody whose circumstances whether they say, well, you know, I need the hundred or I need the hundred, I better take it.
But how fair is that? And our government should treat people equally, And so if missus Jones gets a one hundred thousand today and Missus Smith gets eight hundred thousand next year, my proposal would be that we pay these folks who need the money now, but if they end up paying more on a disease later, then they come back and pay people equally. I think that's fair.
You've been fighting or arguing with the government on how to move forward with the civil trials. Tell me how you want to handle it and how the government wants to handle it.
Well, the government wants to take as long as they can to handle it. We've been with some of our clients have been waiting thirty and forty years to have this, to have something done, and they can't wait any longer. We're having literally people dying every week every week, and it's not fair. Again, the government knew about these chemicals in the water since the seventies. They knew about it,
they stopped, they fixed the water in eighty seven. They delayed telling people to ninety seven, and they could have told people earlier so they could get screening an early diagnosis, which they didn't do. Thousands of people died because of the government's problems, because of what they did, and they cover up. But yet the government doesn't want to do something quickly and didn't want to help people. Well, that's
why people are upset, because there's not the money. That gets them upset is no one's asking me the question how could this have happened? Why isn't Congress interested in finding out why it happened, who's supposed to be responsible for it? And what can we do to not have this happen again? Otherwise historys are going to repeat itself. But we don't figure that out. Most of our clients don't ask how much is this case worth? They want to know what happened to them? How did I lose
my wife, my children? Why did I have three miscarriages? Why were my two children? Why did they die two days after they were born? They don't give a happy damn about the money. They need to know. They have to have answers, and so for the government not one not to give them the answers and then come up and try to take advantage of their age and the infirmities. They think it's unfair.
I want to point out that Justice Department lawyers signal they need more time to prepare, saying only that a start date of some time in twenty twenty four was possible, and that the Undersecretary of the Navy, Eric Ravin said in a statement, we are committed to ensuring that every valid camp lejun claim is resolved fairly and as expeditiously as possible. Bob so ed, are you looking to have a Bellweather trial?
Well, our proposal, which is pending before the court, now asked the court to give us Bellweather trials based on disease. So, for example, we may have all the clients would have a certain or similar disease, and they may have different different stages of that disease. Let's say you had bladder cancer, caught it early, it was cured. Somebody who had bladder cancer that was caught mid stage and have extensive treatment.
And someone who had bladder cancer extensive treatment eventually died or a metastasized and they had multiple cancer uses there. So there are different values for each person who may have the same disease but have different results, And so I think a Belweather case would have the ability to tell us and tell the government this is what a jury thinks is proper. And you can have several of those. You don't have to just rely on one Belwether. You
can have you know, multiple beil Weathers. And I think that's a fair way. What does the government want at all?
That they want separate trials for everyone, for each person?
It is funny they I think they recognize that they need to have some kindance as well. But the construct of how these cases is going to be tried they kind of I wouldn't use the words kiddish, but they are not very definitive about how they think it ought to go. They do think that first trials ought to start in twenty twenty five. Believe ours should start the first quarter in twenty twenty four. We're ready for it.
When will this be decided?
Whether they are are proposed alternate orders or before the court now? So we're waiting to hear from them any day.
I know there was a challenge to your appointment as lead counsel. Is that settled yet.
The court has an issue in order. We responded with a brief last week and so that's penning before the court. But to be honest, with you. The courts have multiple courts all over the country have done the same thing Eastern District of North Carolina did. There's no error in that at all.
I know that there were ninety three thousand claims filed. How many lawsuits do you think you'll end up with?
Well, the secret behind the camp of View and Justice Act. It's something we tried to prevent what happens in a lot of mass torts. In most mass torts, you are required to file your lawsuit because if you don't, you're going to miss the statue of limitations. So therefore the courts just get overwhelmed with thousands and thousands of lawsuits. So what we did is we set up the system where someone could file their claim to the Navy and that would toll the statue of limitations, and then they
don't actually have to file their lawsuit. If they don't want to, they can wait on the settlement process, or they can file their lawsuit, but there's no rush to the courthouse. So it's pretty nifty the way it turned out. And right now they're about a thousand cases that are filed and the court's not getting overwhelmed with all the filings.
Thanks so much Ed. That's Ed Bell, lead plaintiff's Council in the Camp lejun cases. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast, slash Law, and remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg